Summary
reversing denial of summary judgment where plaintiff slipped on wet substance on defendants' floor but did not demonstrate that defendants created the condition
Summary of this case from Cooper v. Pathmark Stores, Inc.Opinion
October 20, 1997
Appeal from the Supreme Court, Kings County (Garson, J.).
Ordered that the order is reversed, on the law, with one bill of costs, the motions are granted, and the complaint is dismissed.
The plaintiff Stanford Salkey alleged that he was injured when he slipped on a wet substance on the floor of the clubhouse at Aqueduct Racetrack. In order to establish a prima facie case of negligence in a slip-and-fall case, a plaintiff must demonstrate that the defendant either created the condition which caused his or her fall, or had actual or constructive notice of the condition (see, Katsoris v. Waldbaum, Inc., 241 A.D.2d 511; Kraemer v. K-Mart Corp., 226 A.D.2d 590; see also Piacquadio v Recine Realty Corp., 84 N.Y.2d 967). To establish constructive notice, the defect must be visible and apparent, and must exist for sufficient length of time before the accident so as to permit the defendant's employees to discover and remedy it ( see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837).
Here, the defendants met their initial burden of establishing that they neither created nor were aware of the alleged dangerous condition. In opposition, the plaintiffs failed to raise an issue of the fact as to actual or constructive notice. The record is devoid of proof that any of the defendants' employees had notice of the substance which caused the plaintiff to fall. Any finding that the substance had been on the floor for a sufficient length of time so as to permit the defendants' employees to discover and remedy the condition would be based on mere speculation ( see, Masotti v. Waldbaums Supermarket, 227 A.D.2d 532; Kraemer v. K-Mart Corp., supra).
Furthermore, the plaintiffs failed to present evidentiary proof in admissible form that the defendants' employees created the condition by failing to properly mop the floor. The plaintiffs rely upon certain ambiguous statements which were made to Stanford Salkey shortly after the accident by a person allegedly employed by the defendant ARA Leisure Services, Inc. (hereinafter ARA). These statements were inadmissible, however, as the plaintiffs failed to establish that it was within the scope of the employee's authority to speak for ARA ( see, Loschiavo v. Port Auth., 86 A.D.2d 624, affd 58 N.Y.2d 1040; Gottlieb v. Waldbaum's Supermarket, 226 A.D.2d 344; Lowen v. Great Atl. Pac. Tea Co., 223 A.D.2d 534).
Accordingly, the Supreme Court erred in denying the defendants' separate motions for summary judgment.
O'Brien, J.P., Thompson, Santucci and Joy, JJ., concur.